Andhra Pradesh High Court - Amravati
The Branch Manager vs S.K.Gowsani 5 Others on 21 March, 2024
APHC010118382017
IN THE HIGH COURT OF ANDHRA
PRADESH AT AMARAVATI [3364]
THURSDAY, THE TWENTY FIRST DAY OF MARCH
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE SRI JUSTICE A V RAVINDRA BABU
MOTOR ACCIDENT CIVIL MISCELLANEOUS APPEAL NO:
2525/2017
Between:
1. The Branch Manager, Cholamandalam General Insurance Co.
Ltd., 14-1433, Sunshine Plaza, 3rd Floor, Ramalingapuram,
Nellore.
...APPELLANT
AND
1. S.K. Gowsani, W/o late S.K. Dastagiri, aged about 45 years,
residing at Jagarajupalle Village, Inganoor Post, Srikalahasti
Mandal, Chittoor District.
(died, R.2 to R.4 already on record as LRs of the deceased first
respondent as per Court order, dated 19.06.2023 in Memo
No.44388 of 2023).
2. S.K. Mobeena Gowsani, D/o late S.K. Dastagiri, aged about 22
years, residing at Jagarajupalle Village, Inganoor Post,
Srikalahasti Mandal, Chittoor District.
3. S.K. Gouse Bhasaha, S/o S.K. Dastagiri, aged about 21 years,
residing at Jagarajupalle Village, Inganoor Post, Srikalahasti
Mandal, Chittoor District.
4. S.K. Sattari, D/o S.K. Dastagiri, aged about 15 years, being
minor, represented by his mother, first respondent.
... Respondents/Petitioners.
5. T. Jyothi Kumar, S/o Subrahmanyam, aged about 32 years,
residing at D.No.3/1062, Nagari Street, Head Post Office Lane,
Srikalahasti, Chittoor District.
2
6. C. Venkata Subbaiah, S/o C. Subbaiah, Chukkalanidigandu,
Srikalahasti, Chittoor District.
(R.5 and R.6 are not necessary).
...Respondents/Respondents.
The Court made the following:
JUDGMENT:-
Challenge in this MACMA is to the award, dated 03.04.2017 in M.V.O.P.No.307 of 2015, on the file of the Chairman, Motor Accident Claims Tribunal-cum-IX Additional District Judge, Kadapa ("Tribunal" for short), whereunder the Tribunal dealing with the claim of compensation made by the petitioners for Rs.20,00,000/- on account of the death of one S.K. Dasthagiri (hereinafter will be referred to as "deceased"), in a motor vehicle accident, occurred on 19.09.2014, where the Tractor bearing No.A.P.03-TD-0629 (hereinafter will be referred to "offending vehicle") involved, awarded compensation of Rs.9,40,763/-. The unsuccessful third respondent i.e., the Branch Manager, Cholamandalam General Insurance Company Limited, felt aggrieved of the aforesaid award of the Tribunal, filed the present MACMA.
2) The parties to this MACMA will hereinafter be referred to as described before the Tribunal for the sake of convenience.
3) The case of the petitioners, in brief, according to the averments set out in the claim before the Tribunal is that;
(i) The first petitioner is the wife and the petitioners 2 to 4 are children of the deceased S.K. Dasthagiri. The deceased was working 3 as Hakimdhar, stone cutter and agriculturist and he was earning Rs.20,000/- per month and contributing the same for the welfare of the petitioners.
(ii) On 19.09.2014 at about 12-00 p.m., the deceased along with his wife was proceeding from Jaggarajupalle. At that time, the offending vehicle driven by its driver i.e., second respondent in a rash and negligent manner hit the deceased as a result he fell on the road and sustained severe bleeding injuries. He was immediately shifted to Government Hospital, Srikalahasti through an auto and then to SVIMS Hospital, Tirupati for better treatment. While he was taking treatment, on 25.09.2014 he was succumbed to the injuries. The first petitioner gave a report to the Station House Officer, Srikalahasti Police Station and a case in Crime No.147 of 2014 was registered under Section 304(A) of the Indian Penal Code against the driver of the offending vehicle. After investigation police filed charge sheet against the driver of the offending vehicle, who is the second respondent.
(iii) The deceased was 45 years at the time of death. He was quite hale and healthy and sole earning member of the family. On account of death of the deceased, the petitioners lost their love and affection and unable to meet their needs. The first petitioner lost consortium due to death of her husband and the petitioners 2 to 4 the children, lost their beloved father. The accident occurred was 4 solely due to negligent driving of the offending vehicle by its driver. The vehicle belonged to the first respondent, who validly insured with the third respondent. Hence, the respondents are liable to pay compensation.
4) The respondent Nos.1 and 2, the owner and driver of the offending vehicle, remained exparte.
5) The third respondent got filed a counter contending in substance that the second respondent had no valid driving license to drive the vehicle and third respondent is not liable to pay compensation. The first respondent has no valid permit to ply in the alleged route and the terms and violated policy terms and conditions. The compensation claimed is excessive. Hence, the petition is liable to be dismissed.
6) On the basis of the above pleadings, the following issues were settled by the Tribunal for trail:
(1) Whether the accident in question was due to rash and negligent driving of the driver of the tractor bearing No.A.P.-
03-TD-0629?
(2) Whether the petitioners are entitled for grant of compensation, if so, to what amount and from whom?
7) On behalf of the petitioners, P.W.1 to P.W.3 were examined and Ex.A.1 to Ex.A.8 were marked. On behalf of the 5 contesting respondent, R.W.1 to R.W.3 were marked and Ex.B.1 copy of insurance policy and Ex.X.1 to Ex.X.3 were marked.
8) The Tribunal on considering the oral as well as documentary evidence, answered the issue No.1 against the contesting respondent and awarded compensation of Rs.9,40,763/- and apportioned a sum of Rs.5,40,763/- in favour of the first petitioner and a sum of Rs.1,00,000/- each in favour of the petitioners 2 and 3 and a sum of Rs.2,00,000/- in favour of the fourth petitioner.
9) The unsuccessful third respondent/insurance company against the said order, filed the present MACMA.
10) Now, in deciding the present MACMA, the point for determination is whether the award, dated 03.04.2017 in M.V.O.P.No.307 of 2015, on the file of the Chairman, Motor Accident Claims Tribunal-cum-IX Additional District Judge, Kadapa, is sustainable under law and facts and whether there are any grounds to interfere with the same?
POINT:-
11) Sri Kurapati Srinivasa Rao, learned counsel, representing Sri Kota Subba Rao, learned counsel for the appellant, would contend that it was a case of hit and run. In the FIR there were no particulars with regard to the number of the tractor and the name of the driver.
The third respondent examined R.W.3, the investigating officer, who 6 testified that he did not seize the offending vehicle and FIR did not disclose the registration particulars of the vehicle. He would contend that according to the evidence of R.W.2, the RTA official, the offending vehicle was registered with effect from 29.09.2017 to 17.10.2017. The accident was occurred much prior to that i.e., on 19.09.2014. As on the date of accident, there was no registration of the offending vehicle. It shows that the vehicle was planted. Even Motor Vehicle Inspector after inspection of the vehicle could not note down the details of the vehicle. With the above submissions, he contends that the vehicle was planted. He would further submit that even otherwise, on an erroneous exercise, the Tribunal fixed higher compensation. He would submit that the notional income of the deceased was considered as Rs.4,000/- per month which was on higher side. He would contend that the Tribunal erroneously considered an amount of Rs.15,000/- per annum as agricultural income. As per Ex.A.8, the deceased possessed Ac.1-05 cents of land. The land of the deceased is with the petitioners. Only the supervisory charges are to be ascertained as loss of income. There was no basis for the Tribunal to consider the loss of agricultural income as Rs.15,000/- per annum. He would further contend that the income of the deceased was considered at Rs.4,000/- per month on notional theory. The Tribunal without any basis awarded future 7 prospects of 30%. With the above submissions, he would contend that the compensation is liable to be reduced.
12) Ms. P. Kusuma, learned counsel, representing the counsel for respondent Nos.2 to 4, would contend that according to the evidence of R.W.3, he did not speak of about the temporary registration of the vehicle. The offending vehicle was new one. There was a possibility to run the vehicle with temporary registration. Police, after due investigation, filed charge sheet alleging that the driver of the offending vehicle drove the same in a rash and negligent manner and caused the accident. The contention of the appellant that the vehicle was planted cannot stands to any reason. In support of the contention, learned counsel would rely upon the decisions in United India Insurance Company Limited vs. Sushil Kumar Godara1 and IFFCO Tokio Genral Insurance Co. Ltd., vs. Geeta Devi and others2. The learned counsel would further contend that the Tribunal rightly considered the income of the deceased and awarded just compensation which needs no interference.
13) In the light of the above rival contentions advanced, the first aspect is to be considered here as to whether the petitioners were able to prove before the Tribunal that the accident occurred was due to rash and negligent driving of the driver of the offending vehicle.
1 (2021) 14 Supreme Court Cases 519 2 2023 SCC OnLine SC 1398 8
14) As seen from the evidence of P.W.1, the daughter of deceased i.e., second petitioner, she got filed the chief examination affidavit in tune with the pleadings. Through her examination Ex.A.1 to Ex.A.4 were marked. Further the first petitioner was examined as P.W.2 and her chief examination affidavit is nothing but adverting to the case as averred in the petition. Through her examination Ex.A.5- medical bills of the deceased and Ex.A.6-discharge summary belongs to P.W.2 were marked. P.W.3 was a witness to the occurrence, who deposed that the accident occurred, was due to rash and negligent driving of the offending vehicle. Among P.W.1 to P.W.3, P.W.2 and P.W.3 were the direct witnesses to the occurrence. P.W.2 was no other than the wife of deceased, who travelled along with the deceased on the motorbike. During cross examination P.W.2 testified that she and deceased were proceeding in a motorbike and suddenly the tractor came from left and caused the accident. The deceased was having driving licence. In the entire cross examination of P.W.2 and P.W.3, nothing could be elicited to disbelieve their testimony.
15) Apart from this, as seen from Ex.A.1-certified copy of FIR, the police registered FIR originally under Sections 337 and 338 of IPC and after investigation filed charge sheet under Ex.A.4. As seen from Ex.A.3-post mortem report and Ex.A.7-inquest report, the cause of death of the deceased was on account of the injuries received in the accident. It is a case where the second respondent, 9 the driver of the offending vehicle and the first respondent, the owner of the offending vehicle, did not enter into witness box. R.W.1 was examined in support of the case of the third respondent. R.W.2 was RTA official, who spoke to the fact that the registration number of the vehicle was registered from 29.09.2014 to 17.10.2017. R.W.3 was the investigating officer, who laid charge sheet against second respondent.
16) It is to be noted that the contention of the appellant is that as the offending vehicle had the registration from 29.09.2014 to 17.10.2017 and as the date of accident was on 19.09.2014, there was no question of existence of the vehicle by the time of accident, as such, the vehicle was planted. It is very difficult to accept such contention in view of certain answers spoken by R.W.2 during cross examination.
17) As seen from the cross examination of R.W.2, he deposed that the vehicle bearing No.A.P.03-TD-628 and 629 is a new vehicle He admitted that at the time of delivery of the vehicle, there will be a temporary registration. He admitted that their office used to maintain temporary registration particulars and as it was not called for, he did not bring the temporary registration particulars. The driver of the crime vehicle was having driving licence as on the date of accident, but it is non-transport. Even according to R.W.2 though they maintained temporary registration record pertaining to the new 10 vehicles and though the offending vehicle was new one, he did not bring the temporary registration particulars. It was the bounden duty of the insurance company, who examined R.W.2 to get the particulars of the temporary registration also. As the vehicle was new one, absolutely, there was every possibility for temporary registration prior to the permanent registration as spoken to by R.W.2. Hence, the contention of the appellant that the vehicle was planted cannot stands to any reason.
18) Sushil Kumar Godara's case (1 supra) cited by the learned counsel for the petitioners dealt with a situation where the temporary registration of the vehicle after certain period was expired. Coming to the present case on hand, this Court already pointed out as the vehicle was new, the fact that the vehicle had temporary registration before its permanent registration could not be ruled out. The learned counsel misquoted the same. Similarly, Geeta Devi's case is relating to non-possessing a valid driving licence which has nothing to do with the present case on hand.
19) In the light to the above, this Court is of the considered view that the petitioners were able to prove that the accident occurred was due to rash and negligent driving made by the second respondent pertaining to the offending vehicle.
20) There was no dispute that the driver had a valid driving licence and further the vehicle was covered under Ex.B.1-policy. 11
21) Now, it is a matter of consideration to decide the quantum of compensation.
22) As seen from the judgment of the Tribunal, though the petitioners contended that the deceased was working as Hakimdhar, stone cutter and agriculturist and getting Rs.20,000/- per month, but there was no proof to that effect. The Tribunal holding that the petitioners did not file any proof regarding the income of the deceased, but basing on notional theory arrived at as Rs.4,000/- per month. The period of accident was in the year 2014. Considering the minimum wages prevailing over the said period, the fixation of the monthly income of the deceased as Rs.4,000/- was quietly reasonable. However, according to the Tribunal, Ex.A.8-ROR discloses that the deceased has an extent of Ac.1-05 cents of land in his name, as such, he has some income. This Court has now looked into the same, which shows that what all the land of Ac.1-05 cents possessed by the deceased was dry land. It is to be noted that the Tribunal assessed the agricultural income as that of Rs.15,000/- peer annum without any basis.
23) It is to be noted that though the deceased died in whose name Ac.1-05 cents stands but the lands are with the petitioners only. As the lands are with the petitioner even now they can get agricultural income. It is well settled that in case of agricultural income of the deceased, this Court has to look into only the 12 supervisory charges which the petitioners would have incurred in the absence of the deceased. The evidence is wanting with regard to role of the deceased for supervisory charges. It is not known as to what was the basis for water source to the agricultural lands possessed by the deceased for generating good income. It is not known whether they have rainy source or they have any irrigation facility. But, according to Ex.A.8, they are the dry lands. Looking into overall facts and circumstances, this Court is of the considered view that the Tribunal totally erred in calculating the agricultural income as that of Rs.15,000/- per annum.
24) Under the circumstances on guess work, now, this Court has to fix the value of the supervisory services for an extent of Ac.1- 05 cents of dry land of the deceased.
25) Having regard to the overall facts and circumstances, one cannot deny the fact that there is no likelihood of getting good income over an extent of Ac.1-05 cents in the absence of proper evidence, as such, it is just and reasonable to consider the supervisory charges which the deceased would have contributed as that of Rs.5,000/- per annum.
26) It is to be noted that the Tribunal for a sum of Rs.4,000/- as monthly income which was fixed notionally added future prospects of 30% i.e., Rs.1,200/-. It is to be noted that at best as the deceased had an extent of Ac.1-05 cents of land and has value of his 13 supervisory services is Rs.5,000/- per annum insofar as the said value is concerned, the deceased can be considered as self- employed. In that view of the matter, in view of the decision in National Insurance Company Limited vs. Pranay Sethi and others3 as the deceased is aged 45 years, the future prospects to an extent of 25% can be considered. But, insofar as the income of Rs.4,000/- per month gettable by the deceased by doing coolie work is concerned, he cannot be considered as a person, who was self- employed or a person who was on fixed salary. The Tribunal erred in considering the future prospects insofar as the income arrived at notionally.
27) Having regard to the above, this Court disagrees with the findings of the Tribunal that the future prospects of 30% can be granted over the income fixed notionally as well as agricultural income of Rs.15,000/- per annum arrived at. The whole exercise made by the Tribunal to award future prospects cannot stands to any reason and it is not at all tenable.
28) Insofar as the medical expenses to a tune of Rs.18,063/- is concerned under Ex.A.5, bunch of medical bills for the treatment towards the deceased, the Tribunal rightly considered the same. Further the Tribunal granted consortium of Rs.1,00,000/- to the first 3 2017(16) SCC 680 14 petitioner, but in view of Pranay Sethi's case (3 supra), it should be Rs.40,000/-.
29) Now, with the aforesaid findings, this Court would like to fix up the compensation. The notional income of the deceased at Rs.4,000/- per month x 12 months is Rs.48,000/- per annum. As the dependant members are four in number, 1/4th of the same is to be deducted towards personal expenses in view of the judgment in Sarla Verma and others vs. Delhi Transport Corporation and another4. It would constitute Rs.36,000/-. In view of Sarla Verma's case (4 supra) for the age group of 41 to 45 the proper multiplier is "14". The total loss of earnings is to be arrived at as Rs.5,04,000/-. The value of supervisory charges per annum for the agricultural lands of Ac.1-05 cents is Rs.5,000/- and 1/4th is to be deducted towards personal expenses, as such, it is Rs.1,250/-. So, Rs.5,000/- (-) minus Rs.1,250/- is Rs.3,750/- per annum. Insofar as the supervisory charges for the agricultural land is concerned, the deceased can be considered as self-employed, as such, in view of Pranay Sethi's case (3 supra), as the deceased is between the age of 40 to 50 years, 25% of the future prospects can be considered, it would amounts to Rs.938/-. The total value of supervisory charges including future prospects of 25% is Rs.4,688/-. Considering the multiplier "14", it would amounts to Rs.65,632/-. Further in view of 4 (2009) 6 Supreme Court Cases 121 15 the judgment in Pranay Sethi's case (3 supra), the petitioners are entitled to conventional heads i.e., loss of consortium, loss of estate and love affection and funeral expenses is Rs.70,000/- (Rs.40,000/- + Rs.15,000/- + Rs.15,000/-). Further as per Ex.A.5, bunch of medical bills, the petitioners are entitled Rs.18,063/- towards medical expenses. Thus, the total compensation which the petitioners are entitled in view of the above is Rs.6,57,695/-.
30) In the result, the MACMA is allowed in part reducing the compensation from that of Rs.9,40,763/- to Rs.6,57,695/- with interest at 7.5% per annum from the date of petition till the date of realization. As evident from the record while granting interim stay in MACMA No.2525 of 2017, this Court directed the appellant to deposit 50% of the decreetal amount with proportionate interest and costs to the credit of M.V.O.P.No.307 of 2015 before the Tribunal. Later, I.A.No.1 of 2018 is filed by the petitioner Nos.2 to 4 seeking permission to withdraw their share of deposit and the Court granted permission to withdraw their share of deposit. Therefore, the appellant is directed to deposit the rest of the compensation in terms of this judgment and upon such deposit, the petitioner Nos.2 to 4 are entitled to withdraw the same in equal proportion. Insofar as the share of the first petitioner in 50% deposit amount is concerned, as she is no more, it is open to the petitioner Nos.2 to 4 to move appropriate application before the Tribunal to withdraw the same, in 16 accordance with law, if they did not withdraw the same already. In the circumstances, there shall be no order as to costs.
Consequently, miscellaneous applications pending, if any, shall stand closed.
________________________ JUSTICE A.V. RAVINDRA BABU Dt.21.03.2024.
PGR 17 THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU MACMA No.2525 of 2017 Date: 21.03.2024 PGR